Update: police

The last 12 months have seen growing controversy regarding the retention of DNA samples taken from arrested persons and the increased use of the stop-and-search powers under the Terrorism Act. There has also been a series of cases in which courts have held the police to account for the manner in which they exercise their powers.

DNA retention

The debate surrounding the government's revised proposals for DNA retention continues. These proposals provide for retaining the records of convicted offenders indefinitely and retaining the records of those who are arrested but not convicted for a six-year period. By introducing these proposals, set out in clauses 14-20 of the Crime and Security Bill, the government has sought to respond to the judgment of the European Court of Human Rights in S and Marper v UK [2008] ECHR 1581 which held that the current indefinite regime was incompatible with an individual's article 8 rights.

The revised proposals have been heavily criticised since the first reading of the Bill on 19 November 2009. As reported in Solicitors Journal (154/1, 12 January 2010), the Equality and Human Rights Commission has given strong advice to the Home Affairs Select Committee that many of the proposals remain incompatible with the European Convention on Human Rights.

At the second reading debate of the Bill on 18 January, the home secretary Alan Johnson presented statistical support for the proposals. He also outlined case studies of three successful prosecutions based on DNA matches from those who had been arrested but not convicted, including one offender who had been traced through a DNA match from a relative.

The Bill continues its passage through the House of Commons and has now been referred to a Public Bill Committee. On 4 February, Professor Sir Alec Jeffreys, the scientist who pioneered the use of genetic fingerprinting and profiling, expressed his concerns to the Home Affairs Select Committee about the removal of the presumption of innocence. He also warned of the risk of a false match, commenting that 'it is remote but it is not zero' and that as information begins to be shared across European DNA databases, the likelihood of this increases. He, along with others, favours a system similar to that in Scotland where records are not retained of unconvicted persons except those arrested for serious sexual or violent offences, and then only for a limited period.

Others have also outlined their concerns. Damian Green MP, the shadow immigration minister, has described the new proposals as 'unacceptable' and commented that 'we need to adopt something much more like the Scottish model in the rest of the UK'. Justice, the human rights and law reform organisation, said that 'retaining the DNA profile of an innocent person for six years is excessive and unnecessary' and 'if enacted, the government's proposals would replace the existing 'blanket and indiscriminate' retention policy with one that is only slightly less sweeping but still disproportionate'.

It seems therefore that the concerns relating to DNA retention persist despite the government's revised proposals. While it is generally accepted that the ability to obtain and retain DNA profiles is vital in the fight against crime, this must be balanced against the human rights of the public at large.

Stop and search

The European Court of Human Rights has reached a landmark decision in the case of Gillan and Quinton v United Kingdom (see Solicitors Journal 154/2, 19 January 2010). The court found that the stop and search powers under anti-terrorism legislation were too wide and violated individual freedoms guaranteeing the right to private life. The home secretary has since said he will appeal the court's decision. Liberty, the organisation that brought the case, has said they will suggest urgent amendments to legislation to comply with the judgment, during the passage of the Crime and Security Bill.

The current legislation under section 44 of the Terrorism Act 2000 allows for areas to be designated for 'stop and search'. Designation is by an assistant chief constable and must be confirmed by the home secretary. One of the principal concerns arising from this power is the absence of any requirement of necessity or reasonable suspicion. The search need only be for the purpose of looking for articles which could be used in connection with terrorism, a definition capable of extremely broad interpretation. These powers are now used widely, particularly by the Metropolitan Police, although some chief constables have chosen not to invoke them because of the potential for political backlash and unrest within their community.

Notwithstanding the Gillan and Quinton decision, the home secretary has said that the police will continue to use these powers. Moreover, the Home Office announced in February that these powers could be a key part of the anti-terrorism policy for the 2012 Olympic Games. The police are considering deploying this power at every underground and railway station nationwide during the Olympics on the assumption that there will be a severe threat to the UK at this time.

In light of the Gillan and Quinton decision, this policy causes some concern. The home secretary has three months from the date of the judgment to request that the case be referred to the 17-member Grand Chamber, whose decision is final. If this petition is rejected or the appeal subsequently thrown out the government would be obliged to comply, which would bring into question the proposed policing policy for the Olympics.

Further, the Olympics would be the first time these powers would be used across such a wide area, risking heightened tensions between the public and police. There would also be an anomaly if these powers were used in railway stations (under the jurisdiction of the British Transport Police) in an area where they had not been invoked by the local chief constable for the reasons mentioned above.

Search warrants

In the case of R (on the application of Bhatti) v Croydon Magistrates' Court (3 February 2010, unreported), the Divisional Court held that failure to specify the address of the property on an 'all premises' search warrant issued under section 8 of the Police and Criminal Evidence Act (PACE) 1984 was fatal to the validity of the warrant. A police officer had completed the form by hand at the premises but this was found not to satisfy the requirements of section 16(5) PACE: the schedule including the address of the premises to be searched was a crucial and integral part of the warrant. The operational requirements of the police did not justify rewriting the statute.

The Divisional Court was also called upon to consider the extent of a section 8 warrant issued in the case of Wood v North Avon Magistrates' Court [2009] EWHC 3614 (Admin). In that case, the court held that a police force issued with a warrant to search a flat did not have the power to seize a vehicle in the car park belonging to the flats.

In Power-Hynes v Norwich Magistrates' Court [2009] EWHC 1512 (Admin), the Divisional Court found that a section 8 warrant stating that the police were entitled to enter the applicant's property to search for ''¦documents and records (electronic or otherwise) relating to high-value financial transactions' was too vague in that it did not identify, so far as practicable, the articles to be sought, as was required by section 15(6)(b) of the Act. The court observed that one person's high-value financial transaction was another person's low-value transaction and furthermore that there was a straightforward means of identifying the articles to be sought by simply referring to the relevant individuals. Section 15(6)(b) of the Act required that, so far as practicable, the articles to be sought had to be specified in the schedule to allow the occupier to ascertain from the warrant itself the material to which it related.

These cases highlight the importance of requesting sight of a search warrant at the earliest possible stage, ideally at the time of pre-interview disclosure at the police station, in order to assess whether any potential challenge may be made as to their validity and to the lawfulness of any resulting search and seizure.

R (on the application of Michaels) v Highbury Corner Magistrates' Court [2009] EWHC 2928 (Admin) concerned a judicial review of the lawfulness of a stop and search which had been carried out under section 23 of the Misuse of Drugs Act 1971. The claimant was seen to have been acting suspiciously and was approached by police officers. He was informed that he was to be searched pursuant to section 23. The claimant was not notified by the officer of his name and the police station to which he was attached prior to starting the search, as is required by section 2 PACE. A struggle ensued and the claimant was arrested and subsequently convicted of obstructing police officers in the exercise of their duty, contrary to section 23(4) of the 1971 Act. The Administrative Court, in granting the application, found that the failure of the police officer to inform the suspect of these details rendered the subsequent search unlawful. The court concluded that, however formalistic the section 2 requirement might appear to be, it was one that had to be complied with for the search to be lawful.

Police powers of entry

The power of police officers under section 17 PACE to enter premises was considered by the Divisional Court in the case of Syed v Director of Public Prosecutions [2010] EWHC 81 (Admin). Section 17(1) provides that 'a constable may enter and search any premises for the purpose'¦ (e) of saving life or limb or preventing serious damage to property'. The appellant in this case had appealed by way of case stated against his conviction for assaulting a police constable in the execution of his duty, contrary to section 89 of the Police Act 1996. The police had attended the appellant's house following a telephone call from a neighbour reporting a disturbance. When the officers arrived, there was no sign of a disturbance and the appellant explained that he had had a verbal argument with his brother. When the appellant became evasive in response to further questions, the officers informed him that they had a right to enter his home pursuant to section 17 PACE if they were in fear for the welfare of persons within the house. The appellant had then assaulted both officers and was subsequently charged and convicted. The court held that concern for the welfare of someone within the premises was not sufficient to justify an entry within the terms of section 17(1)(e). Therefore, the police officers had not been acting in execution of their duty and, accordingly, the appellant's conviction could not stand.

It is encouraging that the higher courts remain unwilling to overlook what may at first appear to be technical breaches of statutory provisions governing the powers of the police. Where Parliament expressly imposes conditions upon the exercise of police powers, the rights of citizens can only be guaranteed where these conditions are rigorously applied and upheld.